Legal SA: CPA Provisions Re Non-Refundable Deposits & Cancellation Fees – Section 33: Catalogue Marketing & Section 41: False, Misleading or Deceptive Representations
This is the 6th insert of 8 dealing with the captioned matter – a topic that is regularly entertained by the CPA Commissioner of late
CPA PROVISIONS RE NON-REFUNDABLE DEPOSITS & CANCELLATION FEES – SECTION 33: CATALOGUE MARKETING & SECTION 41: FALSE, MISLEADING OR DECEPTIVE REPRESENTATIONS
SECTION 33 CATALOGUE MARKETING
· Described as a transaction not entered into in person & includes an agreement by telephone ‘postal order or fax, or in any similar manner’ – one would imagine that the latter can/does include online transactions & brochures relating thereto
· The supplier must disclose its ‘cancellation, return, exchange and refund policies’ [Section 33 (3)(f)]
· Bear in mind that such disclosure must meet all the (other) requirements e.g. plain language, conspicuous etc
SECTION 41 FALSE, MISLEADING OR DECEPTIVE REPRESENTATIONS
· This section applies to ‘marketing’ but bear in mind is has not been defined as such – however ‘market’ has been defined being the promotion and supply of goods & we’ve seen how widely these phrases are defined!
· The part of this section that applies to our topic is the duty on the supplier not only to ensure that the wording used is not misleading, ambiguous or deceptive but to clarify ‘any apparent misapprehension’ that the client may have
· Such a ‘misapprehension’ may be reasonably apparent from the client’s body language e.g. frowning if it is a one-on-one sale but very difficult when it is telephonic or on-line. Accordingly the documentation and on-line information must be carefully scrutinised to ensure that such ‘misapprehension’ is avoided and addressed
· This section [Section 41 (3)] has a so-called deeming provision i.e. if the following misapprehension is not corrected, it will be deemed/regarded to be a ‘false, misleading or deceptive presentation’ & I believe this includes not very clearly explaining non-refundable deposit and cancellation provisions i.e.
(i) the transaction affects, or does not affect, any rights, remedies or obligations of a consumer;
‘WHAT TO DO’GUIDELINE
· Ensure that your cancellation, refund and non-refundable deposit clauses are worded in such a way that the reader who is your ‘average’ citizen and who has not travelled at all or much before, can understand it.
· Do not ‘hide it’ either in unnecessary verbiage or small print
· Bear in mind that your consultant may not be present so ensure that an objective reading of your brochure will not give rise to a so called ‘misapprehension’.
· If your consultant is present, go through the presentation and ALL the wording carefully, be cognizant of the body language and clarify where necessary.
© ADV. LOUIS NEL
DECEMBER 09 2016